C.B. and U.S. Postal Service, New Kensington Post Office (Board decision, February 19, 2025)

ECAB final decision. The Board affirmed a $53,850.71 overpayment, denial of waiver, and deductions from continuing compensation. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal worker received FECA wage-loss benefits and Social Security retirement benefits without the required offset during two periods. OWCP found a $53,850.71 overpayment and found him without fault. The Board upheld the overpayment and denial of waiver. It also approved recovery through $1,400 deductions every 28 days from continuing compensation.

Decision snapshot

• Authority: FECA; 20 C.F.R. § 10.441.
• Outcome: Overpayment, waiver denial, and $1,400 periodic deductions affirmed.
• Key point: The overlapping benefits required an offset, and the record did not support waiver.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.B., Appellant
)
)
and ) Docket No. 25-0246
)
Issued: February 19, 2025
U.S. POSTAL SERVICE, POST OFFICE, )
New Kensington, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

JURISDICTION

On January 25, 2025, appellant filed a timely appeal from a January 23, 2025 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an overpayment of compensation in the amount of $53,850.71 for the periods July 1, 2019 through July 17, 2021 and March 1, 2022 through June 15, 2024, for which he was without fault, because he concurrently received FECA wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery

1
5 U.S.C. § 8101 et seq. of the overpayment by deducting $1,400.00 from appellant’s continuing compensation payments, every 28 days.

FACTUAL HISTORY

This case has previously been before the Board on different issues. 2 The facts and circumstances set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On April 21, 1997, appellant, then a 44-year-old part-time flexible letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on that date he injured his right knee and thigh when descending steps while in the performance of duty. OWCP accepted the claim for a right knee sprain, right lower leg arthropathy, complications due to a right internal joint prosthesis, and a loose body in the right knee. Appellant underwent a right total knee replacement on June 22, 1999 and a right total knee replacement revision on April 22, 2004. OWCP paid him wage-loss compensation for intermittent disability until August 16, 2006, when he stopped work and did not return. It paid appellant wage-loss compensation on the periodic rolls effective November 26, 2006.

A notification of personnel action (PS Form 50) indicated that appellant’s retirement coverage was under the Federal Employees Retirement System (FERS).

On November 8, 2018, OWCP sent a FERS/SSA dual benefits form to SSA for completion.
In a response dated October 18, 2019, SSA provided appellant’s SSA age-related retirement benefit rates with and without federal service from September 2017 through December 2018.

In a November 8, 2021 election of benefits form (Form CA-1105), appellant elected to receive retirement benefits from OPM in lieu of workers’ compensation benefits from FECA effective July 17, 2021.

In a Form CA-1105 dated February 12, 2022, appellant elected to receive FECA benefits from OWCP in lieu of retirement benefits from OPM effective March 1, 2022. OWCP paid him wage-loss compensation on the supplemental and periodic rolls commencing March 1, 2022.

On March 15, 2024, OWCP sent a second FERS/SSA dual benefits form to SSA for completion. In a March 19, 2024 response, SSA provided appellant’s SSA age-related retirement benefit rates with and without federal service from July 2019 through December 2023. It indicated that he had received retirement benefits beginning July 2019.

By letter dated June 28, 2024, OWCP advised appellant that, effective July 13, 2024, his FECA wage-loss compensation benefits would be offset by his SSA age-related retirement benefits every 28 days, and that his new net wage-loss compensation payment every 28 days would be $2,813.26.

2
Docket No. 22-0539 (issued December 7, 2022); Docket No. 23-0795 (issued December 28, 2023).

2
On August 16, 2024, OWCP noted that SSA had provided conflicting information in its October 18, 2019 and March 15, 2024 dual benefits calculation forms, including different start dates for retirement benefits and different SSA rates. It requested clarification from SSA.

In a revised dual benefits form dated August 20, 2024, SSA indicated that appellant’s entitlement to SSA age-related retirement benefits based on age was July 2019 and confirmed that the figures submitted on March 15, 2024 were correct. It again set forth the rates for appellant’s SSA age-related retirement benefit rates with and without FERS. Beginning July 2019, appellant’s SSA rate with FERS was $2,158.20 and without FERS was $1,216.70; beginning December 2019, his SSA rate with FERS was $2,192.70 and without FERS was $1,236.10; beginning December 2020, his SSA rate with FERS was $2,221.20 and without FERS was $1,252.10, beginning December 2021, his SSA rate with FERS was $2,352.20 and without FERS was $1,325.90; beginning December 2022, his SSA rate with FERS was $2,556.80 and without FERS was $1,441.20, and beginning December 2023, his SSA rate with FERS was $2,638.60 and without FERS was $1,487.30.

In a notice dated August 26, 2024, OWCP advised appellant of its preliminary determination that he had received a $53,850.71 overpayment of compensation for the periods July 1, 2019 through July 17, 2021 and March 1, 2022 through June 15, 2024 because he concurrently received SSA age-related retirement benefits and FECA wage-loss compensation without an appropriate offset. OWCP found that appellant had received an overpayment of $4,748.90 for the period July 1 through November 30, 2019; an overpayment of $11,542.33 for the period December 1, 2019 through November 30, 2020; an overpayment of $7,316.14 for the period December 1, 2020 through July 17, 2021; an overpayment of $9,304.33 for the period March 1 through November 30, 2022; an overpayment of $13,423.92 for the period December 1, 2022 through November 30, 2023; and an overpayment of $7,515.09 for the period December 1, 2023 through June 15, 2024, for a total overpayment of $53,850.71. It further advised him of its preliminary determination that he was without fault in the creation of the overpayment. OWCP requested that appellant submit a completed overpayment recovery qu estionnaire (Form OWCP- 20) and supporting financial documentation. Additionally, it provided an overpayment action request form and notified him that, within 30 days of the date of the letter, he could request a final decision based on the written evidence or a prerecoupment hearing.

In an August 26, 2024 response, appellant contested the fact and amount of the overpayment. On September 4, 2024, he proposed that OWCP deduct $1,381.00 from his continuing compensation benefits as repayment of the overpayment. In a September 12, 2024 response, OWCP advised appellant to complete the Form OWCP-20.

In a September 20, 2024 overpayment action request form, appellant requested a prerecoupment hearing before a representative of OWCP’s Branch of Hearings and Review. In an accompanying letter of even date, he proposed that OWCP deduct $1,400.00 per month from his continuing compensation benefits. Appellant advised that he detrimentally relied upon erroneous information in purchasing an $8,500.00 truck for his brother and had to pay $500.00 to cancel a scheduled vacation after he learned of the overpayment.

In a completed Form OWCP-20 signed September 20, 2024, appellant reported monthly income of $6,132.56 and monthly expenses of $1,666.00. He listed assets of $1,034,511.00.

3
A telephonic hearing was held on December 3, 2024.

By decision dated January 23, 2025, OWCP’s hearing representative finalized the August 26, 2024 preliminary overpayment determination. He determined that appellant had received an overpayment of $53,850.71 for the periods July 1, 2019 through July 17, 2021 and March 1, 2022 through June 15, 2024 because he concurrently received SSA age-related retirement benefits and FECA wage-loss compensation without an appropriate offset. The hearing representative denied waiver of recovery of the overpayment and required recovery of the overpayment by deducting $1,400.00 from appellant’s continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the disability or death of an employee resulting from personal injury sustained while in the performance of his or her duty.3 Section 8116 limits the right of an employee to receive compensation. While an employee is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from the United States. 4

Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the amount of compensation by the amount of any SSA age-related benefits that are attributable to the employee’s federal service. 5 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit. 6

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment of wage-loss compensation in the amount of $53,850.71 for the periods July 1, 2019 through July 17, 2021 and March 1, 2022 through June 15, 2024 because he concurrently received FECA wage-loss compensation benefits and SSA age-related retirement benefits without an appropriate offset.

OWCP paid appellant wage-loss compensation for total disability on the periodic rolls from November 26, 2006 until July 17, 2021 and from March 1, 2022 onward. Appellant, however, had received SSA age-related retirement benefits beginning July 2019. As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA age-related retirement benefits

3
5 U.S.C. § 8102.
4
Id. at § 8116.
5
20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).
6
FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4 attributable to federal service without an appropriate offset.7 The information provided by SSA indicated that a portion of appellant’s SSA age-related retirement benefits were attributable to his federal service. Accordingly, the Board finds that fact of overpayment has been established. 8

To determine the amount of the overpayment, the portion of SSA age-related retirement benefits attributable to federal service must be calculated. OWCP received documentation from SSA with respect to the specific amount of SSA age-related retirement benefits that were attributable to federal service. SSA provided appellant’s SSA age-related retirement benefit rates with FERS and without FERS from July 2019 through December 2023. OWCP provided its calculations for each relevant period based on SSA’s dual benefits form and determined that appellant received an overpayment in the amount of $53,850.71. The Board has reviewed OWCP’s calculations and finds that it properly determined that appellant received prohibited dual benefits totaling $53,850.71 for the periods July 1, 2019 through July 17, 2021 and March 1, 2022 through July 15, 2024.9

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or accepting an overpayment is still subject to recovery of the overpayment, unless adjustment or recovery would defeat the purpose of FECA or would be against equity and goo d conscience. 10 The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests within OWCP’s discretion pursuant to statutory guidelines. 11

Recovery of an overpayment will defeat the purpose of FECA, if such recovery would cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current income, in cluding compensation benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do not exceed a specified amount as determined by OWCP. 12 Additionally, recovery of an overpayment is considered to be against equity and good conscience when an individual who received an overpayment would experience severe financial hardship in attempting to repay the debt or when an individual, in reliance on such payment or on notice that such payments would be

7
Supra note 6; see F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued February 21, 2019).
8
See L.K., Docket No. 20-1574 (issued June 23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).
9
See H.S., Docket No. 22-1040 (issued May 12, 2023); J.S., Docket No. 22-0369 (issued June 7, 2022); N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019). 10 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued February 12, 2020).
11
A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).
12
20 C.F.R. § 10.436(a)-(b). For an individual with no eligible dependents the asset base is $6,200.00. The base increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.4a(2) (September 2020).

5 made, gives up a valuable right or changes his or her position for the worse. 13 To establish that a valuable right has been relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in reliance on the payments or on the notice of payment. 14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment.

As OWCP found appellant without fault in the creation of the overpayment, waiver must be considered, and repayment is still required unless adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity and good conscience. 15

On his Form OWCP-20, appellant reported total monthly income of $8,919.35 and total monthly expenses of $1,666.00. As his total monthly income exceeded his total monthly expenses by more than $50.00, he has not shown that he needs substantially all h is current income to meet current ordinary and necessary living expenses. 16 Consequently, he has not demonstrated that recovery of the overpayment would defeat the purpose of FECA.

Appellant has asserted that he would not have purchased a truck for his brother or canceled a scheduled vacation if he had known about the overpayment. However, he has not submitted sufficient evidence to establish that he relinquished a valuable right or changed his position for the worse in reliance on the payment which created the overpayment. 17 Thus, appellant has not established that recovery of the overpayment would be against equity and good conscience.

Consequently, the Board finds that OWCP properly denied waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those cases where OWCP seeks recovery from continuing compensation under FECA. 18

Section 10.441 of OWCP’s regulations19 provides that, when an overpayment has been made to an individual who is entitled to further payments, the individual shall refund to OWCP 13 Id. at § 10.437(a)(b).
14
Id. at § 10.437(b)(1); see also C.H., Docket No. 16-0968 (issued August 8, 2016).
15
See J.R., Docket No .17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).
16
Supra note 13 at § 10.437(a), (b).
17
M.R., Docket No. 20-1622 (issued June 30, 2021); L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989). 18 Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).
19
Id. at § 10.441(a).

6 the amount of the overpayment as the error is discovered or his or her attention is called to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking into account the probable extent of future payments, the rate of compensation, the financial circumstances of the individual, and any other relevant factors, so as to minimize any hardship. 20

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly required recovery of the overpayment by deducting $1,400.00 from appellant’s continuing compensation payments, every 28 days.

OWCP gave due regard to the financial information submitted, as well as the factors set forth in 20 C.F.R. § 10.441 to minimize hardship. 21 Therefore, it properly required recovery of the overpayment by deducting $1,400.00 from appellant’s continuing compensation payments, every 28 days.

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment of wage-loss compensation in the amount of $53,850.71 for the periods July 1, 2019 through July 17, 2021 and March 1, 2022 through June 15, 2024, for which he was without fault, because he concurrently received FECA wage-loss compensation benefits and SSA age-related retirement benefits without an appropriate offset. The Board further finds that OWCP properly denied waiver of recovery of the overpayment and properly required repayment of the overpayment by deducting $1,400.00 from his continuing compensation payments, every 28 days.

20
Id.; see L.G., Docket No. 19-1274 (issued July 10, 2020).
21
See C.P., Docket No. 22-1248 (issued June 14, 2024); M.S., Docket No. 20-0068 (issued May 14, 2021);
M.B., Docket No. 20-1578 (issued March 25, 2021).

7
ORDER

IT IS HEREBY ORDERED THAT the January 23, 2025 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 19, 2025
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8